Claire Trevett

Claire Trevett is the New Zealand Herald’s deputy political editor.

Nobody will own foreshore and seabed - Govt

The Government has proposed a means for Maori to seek recognition of customary rights and title over the foreshore and seabed. Photo / Sarah Ivey
The Government has proposed a means for Maori to seek recognition of customary rights and title over the foreshore and seabed. Photo / Sarah Ivey

Nobody will own the foreshore and seabed but coastal Maori will be able to go to court or negotiate with government to have customary title and rights recognised if new government proposals are adopted.

Attorney General Chris Finlayson released a discussion document setting out the government's preferred options for the foreshore and seabed this morning.

Under the government's proposals, the 2004 Foreshore and Seabed Act would be repealed and a new law passed which took away full Crown ownership and vested the foreshore and seabed as 'public domain' instead - meaning nobody had ownership.

It proposes allowing Maori to go to the High Court or negotiate with the government to have their customary rights recognised, including customary title. Customary title would not be equal to freehold title but would have rights attached likely to include the right to decide how that area was used, such as by having veto rights over developments.

Each hapu would have to meet a series of tests before customary title was awarded. Those who did not reach it could still have other, lesser rights recognised.

The government also proposes weakening the current test that applies for proving territorial rights - a step which will mean more hapu can qualify.

It removes the need for the hapu to have had unbroken title to adjacent land since 1840. Instead, hapu will have to show only that exclusive use of the area over other hapu.

The new law would also enshrine rights of public access, except where it would be unreasonable, and ensure the rights of existing private owners are not affected. Those with rights such as fishing quota would also not be affected.

The document was welcomed by Maori Party co-leader Tariana Turia who said it addressed the main issues Maori had objected to in the 2004 Act - the restoration of property rights and access to justice.

She said her party's first priority was for the 2004 Act to be repealed but did not comment on the new proposals put forward, instead urging Maori to express their own views.

The government ruled out other options, which included full Crown ownership and full Maori ownership, saying neither option would allow the interests of all New Zealanders to be balanced."

A further option of making the Crown the interim owner until claims for customary title were tested were rejected because the government believed it would result in delays in decisions for the use of the areas, such as for developments while the final owner was determined.

If the 'public domain' option was taken, the new law would specify who had different roles and responsibilities. For example, regulatory responsibility would remain with the Crown and local councils, and regional councils and Department of Conservation responsibilities would continue.

The government now has to sell its proposals to the wider public to try to secure a wider consensus than the Foreshore and Seabed Act has. It will hold a series of hui and public meetings throughout April and take submissions until the end of that month. Final decisions are expected by early June and the law change by the end of the year.

The suggestion of a 'public domain' was proposed by United Future leader Peter Dunne in 2004 but was not adopted. Instead the former Labour government passed the Foreshore and Seabed Act as a reaction to the Court of Appeal's decision in Ngati Apa case. It extinguished any customary title by placing title in the Crown. The Ngati Apa case gave the green light for the Maori Land Court to investigate the possibility that some iwi or hapu still held customary title under the Te Ture Whenua Maori Act. It opened the way for Maori also to go to the High Court to see if areas of the foreshore and seabed were held in customary title under common law.

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